Court No. - 18
Case :- WRIT - A No. - 8918 of 2018 Petitioner :- C/M Sri Bhar Shiv Mangala Vidyalay, Badi Gaibi, Varanasi And Another Respondent :- Government Of U.P. And 3 Others Counsel for Petitioner :- Sanjay Kumar Singh Kushwaha Counsel for Respondent :- C.S.C.,Nisheeth Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioners and learned Standing Counsel. Shri Nisheeth Yadav appears for third respondent and Shri A.K. Banerjee appears for fourth respondent.
The petitioner-Committee of Management is before this Court assailing the order dated 13.3.2018 passed by third respondent i.e. District Basic Education Officer, Varanasi by which the petitioner was directed to appoint forth respondent in its institution on the post of clerk; and for a direction to third respondent for ensuring joining of fourth respondent in conformity with the direction issued by the Division Bench of this Court dated 29.8.2016 in Special Appeal No.529 of 2016 (Committee of Management, Ramakant Seva Sansthan, Madhyamik Kanya Vidyalaya & Ors. v. State of U.P. & Ors.).
It is contended that the petitioner was granted compassionate appointment in place of her mother and were permitted to join in Ramakant Sewa Sansthan, Madhyamik Kanya Vidyalaya, Ramakant Nagar, Varanasi. The said institution has challenged the said appointment by preferring Writ Petition No.37201 of 2016 (C/M Ramakant Seva Sansthan Madhyamik Kanya Vid. & Anr.) in which an interim order was passed on 10.08.2016. The said interim order was assailed in Special appeal No.529 of 2016 (C/M Ramakant Seva Sansthan Madhyamik Kanya Vidyalaya & Anr. v. State of U.P. & Ors.) and the Division Bench of this Court has proceeded to dispose of both the Special Appeal and the Writ Petition by common judgment and order on 29.08.2016 with following observations:-
" At this stage, learned counsel for the parties agree that the matter may be remitted to be examined by the Competent Authority after giving opportunity of hearing to the concerned Committee of Managements.
We are of the view that in the matter of placement of the fourth respondent requires appreciation of facts and, therefore, it would be appropriate that the matter be examined by the Regional Assistant Director of Education (Basic) who is the Chairman of the Regional Commitee, constituted to examine the claim for compassionate appointment of dependant of the deceased.
In view thereof, the Special Appeal and the Writ Petition are being disposed of with the directions to the Regional Assistant Director of Education (Basic) to examine and return its finding on the following questions:-
(a) Whether on the date of consideration of claim of fourth respondent of compassionate appointment by the Regional Committee as per the Government Order dated 31.1.1997, any vacant post of Class III & Class IV employee existed in the Institution namely Adarsh Vidya Kendra Balika Vidyalay Junior High School, Bhuletan Varanasi, wherein the deceased employee was working.
(b) The circumstances in which fourth respondent was offered placement in the Institution of respondent No.5 namely Shri Shiv Karan Singh Gautam Uchchtar Madhyamik Vidyalaya and whether Class III post against which he was offered appointment was vacant on 14.7.2015.
(c) The circumstances in which the Committee of Management of the Institution namely Shri Shiv Karan Singh Gautam Ucchatar Madhyamik Vidyalaya, Varanasi repondent No.5 did not allow the fourth respondent to join.
(d) What are the consequences of show cause notice dated 24.2.2016 issued by the District Basic Education Officer, Varanasi to respondent No.5 namely the Committee of Management, Shri Shiv Karan Singh Gautam Ucchatar Madhyamik Vidyalaya.
(e) The circumstances in which fourth respondent was later on placed in the Institution of the petitioner namely Ramakant Seva Sansthan Madhyamik Kanya Vidyalay, Ramakant Nagar, Varanasi.
The Regional Assistant Director of Education (Basic) shall pass a reasoned and speaking order after affording due opportunity of hearing to all the parties concerned within a period of six weeks from the date of submission of certified copy of this order taking decision regarding placement of fourth respondent namely Shri Brijesh Gopal Khalifa on compassionate ground against the vacant post in the concerned Institutions in the following order of preference:-
(1) Firstly, the Institution in which the deceased employee was working.
(2) Then the Institution of the respondent No.5 namely Shri Shiv Karan Singh Gautam Uchchtar Madhyamik Vidyalaya.
(3) And lastly, the Institution of the petitioner namely Ramakant Seva Sansthan Madhyamik Kanya Vidyalaya.
With the above observations and directions, the writ petition is disposed of."
Once the fourth respondent was not accorded appointment, he preferred Writ Petition No.54362 of 2017, which was disposed of on 16.11.2017 asking the District Basic Education Officer, Varanasi to redress the grievance of the petitioner (fourth respondent herein) within six weeks. Pursuant to the aforesaid order the order impugned has been passed providing joining of the fourth respondent in petitioner institution.
In this backdrop, learned counsel for the petitioner submits that the impugned order is infact in teeth of the Division Bench order dated 29.8.2016 in Special Appeal No.529 of 2016, wherein the Division Bench of this Court has proceeded to observe that the compassionate appointment to fourth respondent can only be accorded as per the three preferences given in the said order. As such it is sought to be contended that if there was no vacancy in first institution, where the deceased employee was working, then it was incumbent upon the authority to place the fourth respondent either in second institution or in third institution. It is contended that from perusal of the order impugned, this much is clearly reflected that there is vacancy available in second and third institution and as such the order impugned is in teeth of the judgment and order dated 29.08.2016 passed by the Division Bench.
Shri Nisheeth Yadav, learned counsel for the respondents very fairly states that the observations made by the Division Bench of this Court in the aforesaid special appeal is liable to be complied with.
The Court has proceeded to examine the record in question and find substance in the contention raised by learned counsel for the petitioner. In view of above, as per the observations made by the Division Bench the order impugned is not sustainable. In case the authorities concerned have any inconvenience, they had recourse only to move before the Division Bench for clarification or recall of the said order but by no stretch of imagination the judgment of Division Bench can be modified or rectified by the order impugned. As such, the order impugned cannot sustain and is accordingly set aside. The matter is remitted back to the Regional Assistant director of Education (Basic) to consider and decide the grievance of of the petitioner in the light of the judgment passed by the Division Bench in Special Appeal No.529 of 2016. The authority would be at liberty to accord placement to fourth respondent either in second institution or in third institution within two months.
The writ petition is allowed accordingly.
Order Date :- 29.3.2018 SP/